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November 19th, 2009
Judge rebuffs BudaFirst lawsuit

by JEN BIUNDO

A Court of Appeals has shot down a lawsuit filed against the city of Buda by members of the group Budafirst, seeking to force a referendum election that could prevent U.S. Foodservice from building a distribution facility east of town.

The memorandum opinion was filed Thursday morning by Justice Diane Henson in the Texas Court of Appeals, Third District at Austin.

“That’s good news for us that U.S. Foodservice can move forward on a $51 million facility, bringing jobs to Buda,” said Buda Economic Development Director Warren Ketteman.

The ruling is a vindication for city officials, who have long contended that their decision to allow light industrial use on the proposed U.S. Foodservice site was an “executive decision” not subject to voter referendum.

“It’s good news for us,” said Buda Mayor Bobby Lane. “It pretty well confirms what the city attorney has been saying.”

Budafirst attorney Terry Irion could not immediately be reached for comment Thursday afternoon.

On June 2, in a contentious split vote, councilmembers approved a development agreement amendment with developers of the Sunfield Municipal Utility District allowing limited light industrial use on the property east of IH-35 at Turnersville Road that U.S. Foodservice was eyeing for its distribution facility.

Though located outside city limits and not subject to traditional zoning, the development agreement gives the city some control over land use planning in the 2,000-plus acre development. The 95 acres had previously been slated for commercial, retail or office use.

But saying that the site would generate too much heavy truck traffic, a group of opponents of the development, organized under the name BudaFirst, circulated a petition demanding that the land use change be sent to a referendum election, which would give Buda citizens the right to decide the matter at the polls. The city certified 788 submitted signatures, well in excess of the 20 percent of the city’s 3,514 registered voters required by the City Charter to call an election.

But city attorneys argued that the land use change was not subject to referendum, leading opponents to file a lawsuit against the city on Oct. 9.

The judge’s ruling came less than six weeks later, concurring with the city that the development agreement amendment was not a legislative act, and therefore not subject to referendum.

“Amendment No. 3 is not legislative in character because its resulting land use designation for property in the city’s extraterritorial jurisdiction could only be accomplished through an agreement between the city and the landowner, rather than by legislative act,” the judge wrote in the ruling.

U.S. Foodservice spokesperson Howard Falkenberg said the company has been in continuous contact with its attorneys.

“Obviously we’re pleased that the court agreed with the city council’s position that this matter is not subject to referendum review,” Falkenberg said. “Beyond that, we will just let the dust settle before talking about meaning of the ruling.”

Budafirst members have previously said they would appeal any decisions all the way up to the Texas Supreme Court.

Jen Biundo is managing editor of the Hays Free Press where this story was originally published.

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